A Text Will Lead You

Good evening!

My Phillies are in the World Series. AGAIN! The Angels just defeated the Yankees to force a return to New York - my current home. But you never give up your teams. So I stay with my Phillies, and we have lots of Philadelphians here in New York making it big in the big city, so I never have home that far away.

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Another week means it is time for another announcement. Text "avernalaw" to 50500 and you will receive my electronic business card. Do it right now if you are in the United States. In the "to" space, the number is 50500. The entire message is "avernalaw."

(Cellular phone company charges may apply.)

Do not forget to become a fan on Facebook at http://www.facebook.com/anthonyvernalaw.

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There has been a great response to last week's announcement to the Intellectual Property Security System and to the Intellectual Property Self Survey - which helps with the first step in the system: Review.

Once again, if you have not asked for it, ask for the survey. It is a $600 value, which will go to you - my loyal readers - at no charge. It will help your company re-focus its intellectual property efforts. Send an e-mail to law@nyctrademarks and ask for the Intellectual Property Self Survey for your company.

What is great is that in the last week, I have received clients who are trying to focus on step two: Registration. You must register in order to receive all the benefits that the law provides.

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We have all seen the "Hope" poster, with President Obama as the subject, that was created by Shepard Fairey. During the trial, Fariey admitted that he lied when he said he did not use the Associated Press' photograph as the inspiration for the photograph. Now the art world is up in arms about it.

I do not want a client who will lie to the press and then change his or her story when on the stand. It does not help the case one bit. Certainly, juries will not look happily upon a witness who changes his or her story - especially when that witness is one of the parties of the case.

I do want to look at this logically. This blog has tackled Fair Use before and I want to emphasize this: Fair Use is all about the work. It does not matter if Fairey used the original Associated Press' picture as inspiration or not. George Harrison was found to infringe a song even though he did not know he was writing a new song based upon the original work. If Fairey knows or does not know, the legality of the "Hope" poster does not change.

The original picture and the new poster are so similar that - purposefully or not - the picture has to be the inspiration for the new poster. The legal question is if the new work has transformed the original work so much that the inspiration was fairly used.

And that question is still very difficult to answer.

We've been busy

There is a lot happening in the intellecutal property world.

First off, I have been making lots of appearances elsewhere.

• View an interview I did with New York Business TV on dead trademarks (bring them back to life). Just click on my picture on the right menu.
• You can find me quoted on a new ESPN article by Paul Lukas on sports uniforms.
• I also have two articles at Communicate Value, a blog that my friend Christine Gallagher writes on new media and businesses. There is a trademark basics article and a copyright basics article.

You can now find me on Twitter. I post two or three intellectual property thoughts a day. Click here to follow me on Twitter.

You can still become a fan of the Law Firm of Anthony Verna on Facebook and get extra updates.

The companies founded by Jimi Hendrix' heirs (his father and sister) are suing other companies for trademark infringment that sells other Jimi Hendrix-branded merchandise. In fact, one of the defendants was enjoined from using "Hendrix Electric Vodka" in a previous lawsuit. I find this suit fascinating, because it is a mix of different areas of law. One one hand, you have the trademark interests of the company that doles out the intellectual property of a celebrity who has been dead for 40 years and has not been creating anything new, but on the other hand you have a company creating its own trademarks that resemble another company's trademarks.

There are a couple of very interesting and different copyright infringement lawsuits. The famous one now is about the picture of President Barack Obama above the word "Hope" being modeled after an associated press picture. The artist answers that the nature of the use - painting the picture and placing the word below the face and using it in a political sense - is transformative enough to make it a fair use of the original photograph. It's a difficult argument in my opinion, because Fair Use is never an easy argument to make. It is a topic that has appeared here a few different times, because the guidlines of how much change is needed to transform a copyrighted work into a compltely new, original work is really not known. Here, the artwork is much more stylized than the photograph - the colors are completely different, and the contours of the face are brought out along with a red, white and blue scheme for the political arena. It's certainly not a photograph, but is it transformative?

Also, a local Brooklyn band is looking towards French President Nicolas Sarkozy for possible copyright violations - such as not paying enough money for use of a song from the band on Sarkozy's political party's website.